Commentary: Colorblind principle and reparations

Discussion is increasing on the issue of reparations to African-Americans for slavery and centuries of racism. Reparations by the federal government — which could take such forms as a national apology, remedial programs or individual payments — faces monumental challenges. One is the view that reparations would violate the constitutional requirement of colorblindness, which prohibits government from taking actions based on race.

Colorblindness seems an eminently fair principle, one many people would likely endorse. However, as with "all men are created equal," it is one thing to espouse a principle, quite another to make it a reality. In fact, the story of the colorblind principle is quite relevant to the need for reparations.

In Plessy v. Ferguson in 1896, Supreme Court Justice John Marshall Harlan declared "our Constitution is colorblind" in forcefully dissenting from the decision upholding the constitutionality of laws mandating racial segregation on trains. Harlan's principled rejection of "separate but equal" seems to epitomize fairness, until one looks closely.

Harlan also wrote "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time." Soon thereafter, he authored a unanimous decision refusing to rule that school segregation violated the Constitution. Harlan's colorblind principle was deeply flawed.

More importantly, colorblindness was consistently ignored by American law and society. Flaunting the constitutional amendments that ended slavery and established the rights to vote and equal protection of law, legal racism thrived, most openly in the South. Lynching was ignored, and Jim Crow laws were studied by Hitler's lawyers when drafting the 1935 Nuremberg Laws. Other abominations are less well-known. For example, "convict leasing" systems were established when state legislatures reclassified petty offenses as felonies and judges sentenced groups of black men to labor for agricultural, mining and other businesses. As quickly as men died, they were replaced by the courts. These practices lasted through the 1930s.

Legal racism was hardly limited to the South. Beginning in the 1930s, federal laws were enacted to combat the Depression and expand the middle class. Programs to provide Social Security benefits, minimum wage protections and union rights discriminated against blacks through eligibility criteria and implementation mechanisms. Public housing was built and operated on explicitly segregated bases, and financing for large-scale private housing developments, as well as mortgage programs for home buyers, openly discriminated through restrictive covenants, underwriting rules and other means. Poverty and residential segregation were the result.

When the U.S. finally began to challenge legal racism, the pivot was not colorblind. The Supreme Court's 1954 Brown v. Board of Eduction, which rejected school segregation and the "separate but equal" doctrine, was followed by legislation prohibiting racial discrimination in other realms.

Though profound, these legal changes were half-steps, as they did not address racism's economic and social consequences. Given the scale and complexities involved in such remediation, it would take time to design corrective actions that were effective yet minimized the costs to others. However, affirmative action initiatives in employment and higher education were quickly condemned as reverse racism. Opponents falsely equated remedial action with invidious bigotry. The Supreme Court weighed in by radically recasting the colorblind principle, ruling that the Constitution bars government from taking actions based on race to remedy the broad history of discrimination. The goal of affirmative action programs shifted to diversity, an objective which is important but very different from remediating racism.

The reformulated colorblindness principle also ended hopes for reversing school segregation. In a 2007 case, Parents Involved in Community Schools v. Seattle School District, involving innovative efforts by local districts to overcome residential segregation, the Supreme Court ruled that considering a student's race in school placement decisions was unconstitutional. The 5-4 majority asserted that residential segregation resulted from private actions, ignoring the flagrant bias in federal housing programs. The majority glibly noted that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." As Justice Thurgood Marshall observed when the court began turning away from civil rights, the disinterest seems to come from "a perceived public mood that we have gone far enough in enforcing equal justice."

For centuries, the principle of colorblindness was violated by virtually all levels and branches of government. Then, as the hard work of rectifying racism began, slim majorities of Supreme Court justices recast the principle in simplistic, ahistorical terms that thwart remediation.

Reparations, which raise very difficult issues, also present an opportunity to move toward the principles proclaimed when the nation was born. If colorblindness short-circuits reparations, it will amount to a declaration that the U.S. has done everything necessary to correct legal racism, and the stain on the Constitution will deepen.

Stephan Haimowitz of Altamont is a lawyer who practices in the areas of civil rights and disability law.